Like a bona fide member of Congress, Speaker Nancy Pelosi has opted to seize defeat from the jaws of victory. Pelosi, a stern purveyor of the truth and the criminal justice system, has indicated that she will withhold the Articles of Impeachment leveled against President Trump until ‘[Congressional Democrats] see what [Senate Republicans] are doing … so far, we have not seen anything that looks fair to [Democrats].’
Fairness — the building blocks that American politics are built upon — requires an interesting examination into what exactly a fair political impeachment trial would look like on the Senate side.
History tells us the Senate has been known to curate a world-class community theater show. For President Andrew Johnson, amid the fanfare, bribery, blustering Senate speeches, and continuously changing trial rules, it’s difficult to pinpoint which parts of Article I the president and his pals weren’t in breach of. For President Bill Clinton, it involved a lot of pearl clutching among Republicans — though lots of ink should be spilled over how progressive Republicans have become, tolerating lies to the American people and stormy adultery — I am sure there will be a webinar coming out of Liberty University any day now.
Choking on irony aside, if the Senate establishes rules for Chief Justice John Roberts to adjudicate that mirror any aspect of criminal law or civil procedure — the American people are in for a real treat.
Imagine for example if Sen. Mitch McConnell decided to draft trial rules such that each senator was treated like a juror in a criminal case. One hundred of our nation’s leading thinkers would be holed up somewhere in a dodgy motel in the DC suburbs without their iPhones to sanctimoniously tweet, devoid of their career staffers preening over their intellect, forced to contemplate the future of our nation over shoddy room service, and shuttled in and out of the Capitol like they’re on a field trip.
Or in the true nature of the Senate setting up a battle of legal gladiators, the American left and right could tee up a prime time fight between Michael Avenatti to prosecute the case and Rudy Giuliani on the defense. Though, someone from Senate Judiciary will need to check whether Michael has been disbarred from DC yet. Between ad hominem attacks, we would have a legal showcase unlike anything we have ever seen in the Senate chamber — when asked for a comment the Federalist Society replied ‘oh my’. During trial breaks, McConnell could confirm more federal judges and Avenatti and Giuliani could do their respective hits on CNN and Fox News. Bad lawyering makes for good TV.
Sources on K Street and at Trump Hotel tell me, after a quick rundown of their resume and family lineage, that none of this matters in any case as the path forward is clear. Following the examination of the ‘evidence’ by a prosecutor, some Republican senator will rise to make a motion to dismiss. Chief Justice Roberts bound to Senate rules and eager to get back to his seat across the street where real lawyering happens, will call for a second, and there will be a floor vote, and the motion will carry. Alternatively, they’ll vote on the Articles after the close of evidence and both will fail.
The gavel will fall. Trump will remain in office. Democrats will mourn. Pollsters will poll and 2020 will be a nasty, nasty election that will strain the very fabric of our nation’s unified resolve and the parchment the Constitution is written on. There is some applicable wisdom from 1868 as Sen. James Grimes offered during the Johnson impeachment: ‘I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable president.’
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